San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 1)

April 18, 2013

San Diego Divorce Timeline - LitigationIn San Diego, once parties decide to file for divorce, it is not uncommon for them to be in a rush to just "get it over with". However, rushing through the divorce process is easier said than done.

One of the most important factors in determining the length of the divorce process is whether the parties and their attorneys decide to take the litigation path, the mediation path, or a combination of both.


The Litigation Path

If the parties and their attorneys determine that they are unable to work cooperatively with the other side and that court intervention is necessary, they must follow the litigation process outlined below. A highly litigated divorce typically proceeds as follows:

Petition
If a Petition has not already been filed, one party must file a Petition and Summons and formally serve these documents on the other side. This process is commonly referred to by San Diego family attorneys as "filing for divorce". The party who filed the Petition is known as the "Petitioner" and the other party is known as the "Respondent".

Response
The Respondent must then file a "Response" to the Petition within 30 days of service. Both parties will then begin completing their Preliminary Declarations of Disclosure which includes a Schedule of Assets and Debts and an Income and Expense Declaration. Within these documents, the parties will explain their income and their monthly expenses in addition to identifying all community property assets and obligations.

Motions
Next, the parties can file various motions requesting relief such as temporary child or spousal support, temporary child custody and visitation orders and attorney fees. The timeline for all motions to be heard ranges from an average of 30 days to a year depending on the number of motions, complexity of issues and requests for continuances. If custody and visitation is a disputed issue in the case, the parties must attend Family Court Services mediation or another private mediation.

Discovery
The parties may conduct discovery to find out more information regarding disputed issues. If spousal support is disputed, the parties may investigate issues such as income and assets. If any disputes arise during the discovery process, the parties may file Motions to Compel with the Court to enforce their rights. Should the parties have complex assets or income which is difficult to ascertain, one or both parties may elect to hire experts to weigh in on these issues.

Mandatory Settlement Conference
In San Diego, before the case proceeds to trial, the parties must attend a Mandatory Settlement Conference. This is a meeting between all parties, attorneys, and an independent experienced local family law attorney. If the parties do not reach an agreement, the case may proceed to trial. At trial, both parties present their side of the story with regard to disputed issues. The judge will make a ruling and determine the outcome of all disputed issues.


It is evident from the above timeline that a litigated divorce takes a significant amount of time, money and effort. Even with the assistance of counsel, many divorcing spouses who litigate a large amount of issues call their divorce a "full time job". In our next blog post, the divorce attorneys at the firm will post about "The Mediation Path". Stay tuned!


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Is Spousal Support Always Reported as Taxable Income to the Receiving Spouse?

April 9, 2013

With Tax Day (April 15th) near approaching, both CPAs and divorce attorneys alike are likely receiving an influx phone calls from clients regarding the tax implications of spousal support, often referred to as alimony.

Generally, spousal support is considered to be tax-deductible to the spouse who is paying the support. On the other hand, spousal support must be reported as taxable income to the spouse who is receiving the support. For individuals who stay at home to care for young children and have no other source of income other than the receipt of spousal support after divorce, the tax hit due April 15th might pose quite a significant financial concern.

Tax Return and Spousal SupportAlthough not commonly known, spousal support payments can in fact be designated as non-taxable and non-deductible so long as both parties agree and such an agreement is pursuant to a divorce or separation instrument. During divorce settlement negotiations, agreeing to designate spousal support as non-deductible and non-taxable may be suggested by divorce attorneys in situations where the paying spouse does not want/need the tax deduction, and the recipient spouse does not want to report the income. For instance, as described above, the receiving spouse may not want to report the income so as to avoid the tax hit at the end of the year. Lolli-Ghetti v. Lolli-Ghetti, on the other hand, is an example of a divorce case where the payee spouse did not need the tax deduction because he was a resident of Monaco and the bulk of his income was therefore not subject to federal, state and local income taxes.


There are three types of divorce or separation agreements by which the designation of non-taxable/non-deductible spousal support can be detailed in:

  1. A decree of divorce or separate maintenance or a written instrument incident to such a decree;

  2. A written separation agreement; or

  3. A decree requiring a spouse to make payments for the support or maintenance of the other spouse (as defined in 26 U.S.C. §71 (b)(2)).


The instrument must contain a clear and explicit designation that the parties have elected for the spousal support to be non-taxable to the payee and thus excluded from payee's gross income and non-deductible to the payor. It is also important to note that a copy of the instrument, which contains the above designation of spousal support payments as non-taxable/non-deductible, must be attached to the payee's tax return (Form 1040) for each year that the designation applies to.

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Part II: Religion and Child Custody

April 5, 2013

Sharing Custody of Children During Religious Holidays

As previously blogged about in "Part I: Religion and Child Custody," a common issue in divorce revolves around which religion a child will follow after parents separate. Another common issue recognized by divorce attorneys is how to fairly share custody of children during religious holidays. The recent passing of the Easter holiday likely posed a special concern for divorcing parents with children. In our previous post, we discussed parents with sole legal custody.

Read more about custody and divorce in Del Mar

Divorce and Religion - Part 2.jpgJoint legal custody presents divorce attorneys with unique issues. If both parents share joint legal custody, and one parent objects to the other parent's decisions regarding the child's religion, a judge will have to determine whether the child can be raised as a Catholic, Buddhist, Jewish, etc. The courts will generally first consider the religion that the child was raised in while the parents were still married and order that the child continue to be raised in that same religion.

Since the right to raise a child as the parent sees fit and the right to freedom of religion are both protected by the Constitution, courts must be careful not to infringe on these constitutional rights while still protecting the best interests of the child.

Joint physical custody means that both parents share in the right to spend time with the child or children. Despite custody agreements, problems always seem to arise with regards to holidays, especially when each parent has his/her own religious beliefs and traditions. Holidays like Mother's Day and Father's Day are usually easy to compromise, because they have alternative days to give each parent equivalent time. However, the same cannot be said for religious holidays such as Easter. Easter does not have an alternative celebration date. Divorce lawyers must consider their client's faiths when providing legal advice.

In order to deal with this problem, many divorce attorneys will advise their clients to agree to alternate custody between holidays each year, such as Easter and Thanksgiving. However, for some parents who are particularly religious or have long-lived family traditions, they do not consider the Easter holiday to be equivalent to the Thanksgiving holiday. Thus, shared custody on holidays needs to be determined well ahead of time and with the children's best interests in mind.

Children With Parents of Different Faiths

Another problem arises where divorcing parents are of differing faiths. For example, where one parent is Christian and the other is Jewish, the Easter and Passover holidays usually pose a concern regarding child custody because the holidays often fall near each other on a calendar. Sometime these two holidays will even occur on the very same day. Therefore, it is extremely important that these situations are discussed early on, and that divorce lawyers draft custody agreements that spell-out exactly what will happen with regards to custody to the greatest extent possible.

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Continue reading "Part II: Religion and Child Custody" »

Part I: Religion and Child Custody

April 2, 2013

Which Religion do Children Follow when Parents of Different Faiths Divorce?

With the recent passing of Easter, a Christian holiday, and Pesach (Passover), a Jewish holiday, parents of different faiths may be left wondering which holiday their child will celebrate after a divorce. Because divorcing parents don't always agree on whose religion the children will follow after divorce, the Court is often left to make a determination as to which religion the children will practice, if any.

Divorce, Child Custody, and Religion 1

The Fourteenth Amendment substantive due process clause grants parents a liberty interest in directing their child's religious upbringing. Therefore, Courts must protect each parent's Constitutional right to raise the child as that parent sees fit (as long as the welfare of the child is not endangered). However, when parents divorce, the Courts are often left to decide which parent's constitutional right will prevail in determining the religion of their child. Family law attorneys take a number of factors into consideration when advising clients about their options in regards to their children's religious upbringing.

Child Decides

Often times the Court will simply allow the child to decide which religion, if any, to follow because it is merely an exercise of the child's First Amendment right to freedom of religion. Unfortunately for divorce lawyers, no black letter law exists regarding what age a child must be to decide his or her own religion. However, courts generally consider children over 12 to be able to make decisions about their religious preferences.

By allowing the child to determine his/her own religious preference, the courts are not encroaching upon the parents' Constitutional rights. The parents may continue to practice the religion of their choice, and they have already had the opportunity to exercise their Fourteenth Amendment substantive due process liberty interest to direct their child's upbringing.

Parent With Sole Legal Custody

When a child is not deemed fit to decide for himself/herself, divorce attorneys note that the court will look to which parent has been awarded legal custody. As discussed in previous blogs, legal custody gives a parent the right to make decisions regarding a child's health, education, welfare and even religious decisions. If a parent has been awarded sole legal custody of the child, then that parent alone can make all the decisions regarding the child's religious preference and activities without getting the consent of the other parent or an order from the court.

Parents with Joint Legal Custody

Tomorrow, in "Part II: Religion and Child Custody", we will discuss the issues presented to divorce attorneys by parents who share joint legal custody of their children. Divorce, Child Custody, and Religion 2

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George Clinton's Wife Demands Full Disclosure in Battle Over Spousal Support

April 1, 2013

Divorce Blog Guitar
Funk music innovator, George Clinton, and his wife of 23 years, Stephanie Clinton, are now amidst a battle over spousal support. TMZ reports that Stephanie is now seeking Clinton pay up and is requesting the court to order both temporary and permanent spousal support. Clinton is reportedly not too pleased about this request because he had previously claimed that the couple had been separated for many years and they didn't have any shared bank accounts or real estate. However, Stephanie is requesting that the court make Clinton disclose all of his finances, including taxes, bank accounts, etc. Stephanie wants to know exactly how much spousal support she is entitled to after their 23 years of marriage. The question remains, to what extent does Clinton really have to disclose?

As divorce attorneys know, declarations of disclosure are essentially the backbone of a divorce case. In California, Preliminary declarations of disclosure are mandatory. Final Declarations of disclosure, on the other hand, may be waived by both parties. With regards to disclosure, California Family Code Section 2100(c) requires complete disclosure of all assets and all debts that the parties may have any interest in. The disclosure must occur early in the divorce or legal separation process, and must occur together with a disclosure of all income and expenses.

Read more about fiduciary duty and divorce in California

Types of Disclosure:

Such disclosure requires preparation of the following documents by divorce attorneys:


  1. Schedule of Assets and Debts;

  2. Income and Expense Declaration;

  3. Statement of material facts regarding valuation of all community property assets;

  4. Statement of material facts regarding obligations that the community is liable for; and

  5. Disclosure of any investment opportunity, business opportunity or other income-producing opportunity.

Divorce Declaration of DisclosureWhile these forms may seem fairly simple and straightforward, it is very important that divorce attorneys advise their clients to be extremely open and comply with the full disclosure requirement. This means that that ALL liabilities and ALL assets must be accurately disclosed. This often requires the client to spend a lot of time thumbing through old files of financial statements to find the most recent balances and accurate information. It is also vital that divorce attorneys remind their clients that the disclosure requirement applies to assets and liabilities that the client may have in the future, such as potential business opportunities that the client is aware of. Even though the client may think that an asset or debt is a separate property item, it must still be disclosed in accordance with California Family Code Section 2100.

Learn more about property and divorce

Failure to Disclose = Sanctions?!

Failure to comply with disclosure requirements can result in significant sanctions, so clients should think twice about leaving out an asset or two. For instance, in In re Marriage of Feldman (2007), 153 Cal. App.4th 1470, the Husband failed to disclose numerous transactions and the formation of new companies, which were all quite significant. Wife found out about these assets by other means and filed for sanctions pursuant to California Family Code Sections 1101(g), 2107(c) and 271(a). The court held that husband could be sanctioned, and as a result Wife was granted $250,000 in sanctions! The court reasoned that Husband had an obligation to fully disclose all material facts and information regarding all assets in which the community has or may have had an interest.

So, despite his reluctance, it looks like Clinton is going to have to fork over some financial paperwork so that a fair determination can be made regarding how much spousal support Stephanie is entitled to. If he fails to do so, looks like some pretty hefty sanctions may be in his future.

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Celebrity Divorce - Deion Sanders Awarded Full Custody of Children

March 25, 2013

Deion Sanders Divorce - holding handsFormer MLB and NFL legend, Deion Sanders, is use to battling to the top. But this time, his three children were on the line. As we have previously blogged, Sanders filed for divorce in 2011. Luckily for Sanders, he came out on top again when a Texas judge recently awarded him full custody of his 9 year old daughter. Sanders had also previously been awarded full custody of his two sons, 11 and 13, but had only been given joint custody of his daughter with estranged wife, Pilar. This leaves us to wonder, what exactly does Sanders' "full custody" award entail? As divorce attorneys know, in California, two types of custody exist: "legal" and "physical". Each type of child custody may be awarded solely to one parent or shared jointly between divorcing parents.

Legal Custody:

Legal custody refers to a parent's right to make decisions about the child's health, welfare and education. If a parent is awarded "sole legal custody" by the court, then he/she is the only one who has the right to make such decisions and may do so without consulting with the other parent. However, when divorcing parents are awarded "joint legal custody," they both have the right to make decisions about the child's health, welfare, and education.

Since Sanders has been awarded sole legal custody of all three children, he now has full range to make decisions about where the kids will go to school, whether they should receive medical care and whether they will engage in religious activities, without consulting with Pilar.

Read more about the divorce process in San Diego

Physical Custody:

Physical custody, on the other hand, refers to where the child lives after divorce. The parent who has physical custody is the one who has the right to have the child physically with them and in their home. Physical custody, like legal custody, can be awarded solely to one parent or shared jointly. When a divorce lawyer makes an argument for "Sole physical custody," this means that the child will reside with only one parent. That parent is typically referred to by attorneys and the court as the "custodial" or "residential" parent. Divorce lawyers and judges refer to the other parent as the "non-custodial" or "non-residential" parent. It is important to note that the court can still order visitation time for the non-custodial parent.


Learn more about the family law attorneys at the firm

"Joint physical custody" means that a child's time is divided equally, or close to equally, between both parents. Family lawyers in San Diego will draft such custody orders so that each parent has separate but significant periods of physical custody. Typically, parents share joint legal custody of their children. Divorce attorneys will argue for sole legal custody if one parent is deemed unfit, the parents are completely unable to make decisions together, or it would be in the child's best interest to have sole legal custody with one parent. For Sanders, winning the child custody battle with Pilar now means that all three kids will be living with dad!


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"Shocking" Case Voids Prenup in Divorce

March 19, 2013

A New York appeals court is making waves throughout the family law community as a result of its recent controversial ruling. Before Elizabeth Cioffi-Petrakis and Peter Petrakis got married, they entered into a premarital agreement, commonly known as a "prenup". At trial, the court ruled that the premarital agreement was void. On appeal, the trial court's decision was upheld. Many attorneys throughout the U.S. believe that this case may have enormous implications on every premarital agreement case in the future. Divorce attorneys are surprised that the premarital agreement was held void and by the court's rationale.

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The basis for voiding the premarital agreement in the divorce proceeding was "fraud in the inducement." Just four days before her wedding to Mr. Petrakis, Ms. Cioffi was presented with a prenup and an ultimatum. Although Ms. Cioffi's parents had already spent $40,000 on the wedding, Mr. Petrakis told Ms. Cioffi that he would not marry her unless she signed the agreement. Moreover, Mr. Petrakis orally promised to tear up the agreement and put her name on title to their home as soon as the couple had children. In reliance on Mr. Petrakis' oral assurances, Ms. Cioffi signed the prenup. Once the couple had children, Ms. Cioffi pushed Mr. Petrakis to follow through with their oral agreement and he refused.

Read more entries about premarital agreements

At the time Ms. Cioffi signed the prenup she was represented by an attorney and all other typical enforceability requirements were undisputedly met. The written agreement also contained a provision specifically stating that both parties were precluded from relying on all prior or contemporaneous oral agreements. Notwithstanding that provision, both courts ruled that the premarital agreement void by applying the contract principal of fraud.

In Del Mar and across California, if both parties are represented by counsel from the onset of negotiations, there is no required waiting period that must pass before the parties can sign an enforceable premarital agreement. However, if only one party is represented by counsel, the unrepresented party must consider the agreement for a minimum of seven days before signing it. As long as these and the additional statutory requirements are met, many family law attorneys feel that premarital agreements are extremely difficult to set aside.

Learn more about Del Mar divorce lawyer Nancy Bickford

In a 1938 California case, the court determined fraud is an appropriate basis for setting aside a post-marital agreement. It would seem that New York was not too far off the mark when it applied the generally accepted contract defense of fraud to family law. More and more, divorce lawyers are seeing the stricter standards applied to civil litigation at large are being applied in family courts.


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Overseas Marriage Loophole

March 18, 2013

divorce-attorney-proxy-marriage.jpgIn the past few years internet dating and the concept of online love connections has exploded. It has become increasingly more socially acceptable to find a mate online than when the concept first arose with the invention of the internet. Recently a new trend has emerged: internet marriages.

The idea that a marriage can occur without the physical presence of one spouse is not so new and trendy. A proxy marriage is a legal ceremony which occurs when one (or both) spouses are not physically present. If both spouses are not present, the wedding is called a "double proxy wedding". Usually a "stand in" will be present in the absent spouse's place. Generally, proxy marriages are not legally recognized throughout the United States except in limited circumstances such as for military personnel. In Del Mar, the courts recognize proxy marriage as valid in certain circumstances. California is in the minority of states in this respect.

Read more about divorce procedure in Del Mar, CA

While proxy marriages were traditionally entered into mainly by active duty military, they are now being used between people who met online and may have never seen each other in person. Weddings are literally being conducted over the internet through services such as Skype and Google Hangout. The purpose of requiring both parties to be present and to conduct a ceremony in the presence of a witness is to ensure the voluntariness of the marriage. The main concerns of the states which do not allow proxy marriages include: facilitation of fraud by those attempting to gain U.S. citizenship and the possibility that they will be used by human traffickers to bring women into the U.S. Although individuals are generally interviewed when they apply for citizenship and questioned about the details of their wedding, the Times reports that officials working for Homeland Security and the State Department do not specifically ask if the wedding occurred by proxy.

Learn more about the divorce attorneys at the firm

Although many stats disallow proxy marriages, generally every state recognizes marriages legally conducted abroad. This means that if two parties legally marry in a foreign jurisdiction in accordance with that jurisdiction's laws, their marriage is generally recognized in any state. The recognition of marriages legally conducted abroad is being used as a loophole to circumvent the restrictions on proxy marriages. As divorce lawyers are aware, if a proxy marriage occurs pursuant to the marriage laws of a foreign country and that country recognizes the legality of proxy marriages, the proxy marriage will be legally recognized in any state.

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"Infidelity Clauses" and Celebrity Prenuptial Agreements

March 15, 2013

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A premarital agreement, more commonly known as a "prenup," is a contract entered into by soon-to-be spouses prior to marriage. Celebrities commonly enter premarital agreements in order to protect any wealth they may acquire during marriage. Where one spouse has the potential to make millions of dollars per year, as is often the case in Del Mar, he or she is incentivized to enter into a contract with his or her spouse clarifying that any money earned during marriage will remain his or her separate property upon divorce. In contrast, under California's default community property laws, each spouse is entitled to one-half of all earnings by his or her spouse during marriage. One of the most highly debated issues in celebrity premarital agreement negotiations and litigation is an infidelity clause.

Learn more about quasi-community property

As divorce attorneys know, all premarital agreements are different, and thus all infidelity clauses are different. However, an infidelity clause generally imposes a financial penalty on one or both spouses if he or she commits emotional or sexual infidelity. Financial penalties may include mandatory cash payouts, increased spousal support, or an unequal division of the marital estate. In order to protect themselves in case of divorce, celebrities couples such as Charlie Sheen & Denise Richards, Sandra Bullock & Jesse James, and Catherine-Zeta Jones & Michael Douglas are rumored to have had infidelity clauses in their premarital agreements. Recently, Elin Nordegren was rumored to have demanded a substantial infidelity clause in a premarital agreement as a condition of reconciling with Tiger Woods.

Ironically, despite the buzz about celebrity infidelity clauses in premarital agreements, infidelity clauses are void in Del Mar and across California. In Diosdado v. Diosdado, the California divorce court found in 2002 that a penalty for infidelity is in direct violation of public policy underlying "no-fault" divorce and thus is unenforceable. Thus far, Diosdado has been continually upheld by all published cases to follow it. The policy behind California's "no-fault" divorce is that a party should not be punished financially for any misconduct during marriage. In contrast, certain circumstances allow some states' divorce courts to look at fault in dissolving marriage, determining support, and dividing property. It would seem to follow that these states would uphold an infidelity clause in a premarital agreement, should divorce become an issue.

Read more about jurisdiction and divorce in California

Considering that thousands of celebrities call cities in California home, it is interesting that so many celebrities are discussing unenforceable infidelity clauses. One explanation may be that only celebrities residing and divorcing outside of California are negotiating infidelity clauses. Gossip magazines also debate whether or not an expensive price tag actually deters celebrities from straying outside of their marriages.

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Allen Iverson's Divorce Finalized

Iverson_Divorce_Final.jpgFormer Philadelphia 76er Allen Iverson's divorce has been finalized. The resolution came after the second divorce filing by Iverson's wife, the first having been filed 15 months prior and then withdrawn according to TMZ.

Standing a mere 6 feet (relatively speaking, of course) Iverson was the number one draft pick of the NBA's Philadelphia 76ers in 1996. He went on to be named NBA Rookie of the Year for the 1996-1997 basketball season. He continued his career with eleven NBA All-Star nods, and won the All-Star MVP award in 2001. Iverson is father to five children.

According to LA Times.com, in the divorce decree the judge awarded Iverson's wife legal and physical custody of the parties' five children. In doing so, the court did not have kind words to say about Iverson. According to the article, the court stated about Iverson: "he does not know how to manage the children; has little interest in learning to manage the children and has actually, at times, been a hindrance to their spiritual and emotional growth and development."

Iverson will have some visitation with his children, provided he complies with certain conditions imposed by the court. Notably, one condition is that he is not allowed to consume any alcohol for the next 18 months, nor consume alcohol within 24 hours of visiting with his children and, logically, during the visits. Reportedly, he is also required to obtain therapy and attend AA for the next year. According to the LA Times article, the divorce decree states that Iverson has "an obvious and serious alcohol problem, which has caused him to do inappropriate things in the presence of the children while impaired", things such as, the article reports, leaving the children unsupervised.

While Iverson's divorce is in Atlanta, Georgia, here in San Diego, divorcing parents are similarly faced with issues of alcohol abuse and its implications on custody and visitation issues in the San Diego Superior Court. To address such issues, the California Family Code includes specific provisions.

Prior to making an order for joint physical custody, which means that each of the parents will have significant periods of physical custody, the San Diego family court is required to consider the habitual use of drugs or alcohol by one or both of the parents. Specifically, Family Code §3011 provides: "In making a determination of the best interest of the child in a proceeding...the court shall, among any other factors it finds relevant, consider all of the following: (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent..."

What happens in the case where one parent alleges habitual or continual use of alcohol by the other parent, but the parent facing those allegations denies them? Family Code section 3011 continues: "Before considering these allegations, the court may first require independent corroboration, including, but not limited to written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services..."

In some cases, there may be a document which can easily corroborate the allegations; in others, it may be a bit more difficult. If it can otherwise be shown by a preponderance of the evidence that there is habitual or continual abuse of alcohol by a parent, a judge may order that parent to undergo testing for the use of alcohol. If such testing is ordered, it must be done by the least intrusive means. Further, the parent against whom the allegations are made (and thus who is ordered to submit to the test) has a right to a hearing to challenge the results. A positive test cannot alone be the determinative factor in a custody and visitation ruling; the court is still required to balance all factors to determine the best interests of the children.

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UK Study looks at the effects of divorce on children

www.dailymail.co.uk recently published an article with the headline "Divorce after a child turns seven makes them more likely to perform badly at school." The article cites a study conducted by the Childhood Wellbeing Research Centre that was published by the Department for Education. The government-funded study found that children whose parents divorced after the child had turned seven are more likely to perform poorly and have behavioral problems. The article opined that the lesser impact on children under the age of seven is likely because divorce may have a lesser effect on younger children as they cannot fully understand the implications.

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Divorce was one of the 40 factors looked at by the study for its effects on a child's scholastic achievement and behavior. Among the other factors looked at were number of siblings, number of hours spent in front of the television, the way in which rules are enforced in a household, grandparent involvement and general parenting skills, to name a few. The study projected that the effects on children at the age of seven are likely to continue into the child's teen years and adulthood. The study highlighted the importance of family separation, conflict and divorce on the development of children.

Of course, divorce is in some cases unavoidable. In those cases where divorce must occur, what can San Diego parents do to minimize the conflict and the effect on their children?

One tool parents can utilize is a well thought out parenting plan. When an issue of custody and visitation is brought before the court in San Diego, the parents are required to participate in custody mediation. They can do so either at Family Court Services, which is a free program run by the San Diego Superior Court, or they can opt for private mediation at their own expense. The stated purpose of this custody mediation is to reduce the conflict which may exist between the parties and to develop a custody and time-sharing agreement which is in the best interests of the children. It is not uncommon, however, that San Diego parents are unable to reach an agreement through mediation. In that case, the mediator issues a report and recommendation which is then considered by the court in making its ruling of the custody and/or visitation issue. Frequently, in these recommendations we as divorce attorneys see language included in the proposed parenting plan that is geared towards reducing conflict between the parents. Some such provisions which immediately come to mind are:

"Neither parent shall make negative statements about the other in the presence of or hearing of the children or question the children about the other parent."

"The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them."

"The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order."

Such language may be included in a parenting plan at the recommendation of the mediator, but can also simply be included by agreement between the parties.

Another tool for parents is the resource Kids Turn. Kids' Turn is a San Diego non-profit organization dedicated to working with the entire family to achieve an amicable and healthy divorce.

Read more about Kids' Turn or visit their website.

The study published by the Department of Education did qualify its results by stating that "Some children do relatively well despite unpromising circumstances and some do relatively poor despite having a good start." It's nonetheless helpful for San Diego parents to be aware of how a divorce might impact their children and to take steps that may be appropriate to mitigate any negative impact there may be.

Continue reading "UK Study looks at the effects of divorce on children" »

How Divorce May Change Your Retirement Plans

March 12, 2013

Divorce_after_fifty.jpgDivorce can have a devastating effect on both parties' standard of living and finances.
We have previously blogged about the sacrifices divorcing spouses make when they cannot afford to support two separate households at the same standard of living they enjoyed during marriage.
However, in Del Mar, the "gray divorce trend" is resulting in another sacrifice divorcing couples make - retirement.

Read more about division of retirement in divorce

From 1990 to 2010, the number of divorces involving spouses over 50 years old "gray divorcés" doubled. Experts say that one of the causes for the increase in later-in-life divorces is longer life spans. Just like a divorce between spouses in their 20's and 30's will affect the current standard of living for both parties, a divorce past 50 will affect retirement lifestyles. If a couple divorces when the spouses are between 20 and 40 years old, there is plenty of time before retirement for both spouses to re-build any divided retirement funds. However, gray divorcés will experience the following financial roadblocks:

First, the accumulated retirement savings between the parties is usually divided in half upon divorce. When parties divorce, all property acquired during marriage is divided equally. Most, if not all, of a couple's retirement fund is usually acquired during marriage. Thus, each spouse will only end up with one-half of what they planned on retiring on with his or her spouse.

Second, funding two separate retirements can cost between 30% and 50% more than funding one. Post divorce, the parties will take separate vacations, take twice as many trips to visit their children and grandchildren, use two separate cars instead of one, live in two separate houses, etc. In addition, if one former spouse becomes ill, the other will not be there to care for him or her. Therefore, post divorce, a spouse may have to use significant retirement funds to pay for medical care.

Read some frequently asked questions about divorce in Del Mar

Financial planners have a few suggestions to help gray divorcés get through divorce and retirement past 50. They suggest hiring a financial adviser simultaneously with hiring a divorce lawyer. Additionally, they advise against supporting adult children when it is not feasible. Often around the age of 50, a gray divorcé will have a child who is getting married and expecting them to shell out $30,000 for a wedding. These types of purchases are not advisable. Finally, financial advisers suggest reducing spending by living in a smaller home, traveling less and eating out less.

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Celebrity Divorce - Brendan Fraser Fights to Lower his Support Obligations

March 11, 2013

Celebrity_Divorce.jpgBrendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a "material change of circumstances" he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse's current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

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Fraser alleges that he has had an increasingly difficult time finding acting jobs since the third film in the "Mummy" franchise wrapped in 2008. However, according to IMDB, Fraser has worked on 17 projects since then. Smith claims that Fraser is lying to the court about his true income and hiding his assets. Smith has good reason to be suspicious of his earnings claims. At the time of their divorce, Fraser claimed that he would make $0 from future acting work. In fact he went on to star in movies grossing up to $2 billion worldwide. When confronted with this information, Fraser claimed deals like this were not "set in stone" at the time of his divorce. It is crucial for a spouse to present an accurate depiction of his or her income to the court in a family law case. If Fraser is in fact misleading the court and his ex-wife, he may face harsh penalties and sanctions.

Please contact us if you are contemplating legal separation, thinking of learning about divorce, or have questions regarding division of assets in divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights.

Can the Court Force Me to Sell My House in Del Mar?

March 7, 2013

Division_Del_Mar_Divorce.jpgFor many Del Mar families, real estate is their most valuable asset. Because the prices of the average family home are so high, many families must invest significant funds into real estate just to live in the area.
However, upon divorce, all community property must be divided equally by the court.
If the parties have no other assets as valuable as the family home, it must be sold and the proceeds divided.


Read more about Divorce jurisdiction in Del Mar


Pre-Judgment: Prior to the final resolution of a divorce case, the court will generally avoid ordering the sale of community or separate assets. However, under Family Code §2108, at any time during the divorce proceeding, the court has the authority to order the liquidation of a community asset if necessary to avoid unreasonable market or investment risks. Divorce lawyers know that, in making this determination, the court will consider the nature, scope and extent of the community estate. California courts have held that judges may not order the sale of a community asset unless necessary to prevent the loss of that or another community asset. In some cases, the financial strain of divorce may cause the family residence to be lost to foreclosure. If equity remains in the home, it may be prudent to petition the court to order the sale of the residence so that it is not lost to foreclosure.

At the onset of a divorce proceeding, automatic temporary restraining orders take effect. These restraining orders are commonly referred to as "ATROS". The ATROS prevent the parties from altering the status quo of the marriage during the dissolution proceeding. For Del Mar divorce attorneys, this means that if one party maintains health insurance for the family, he or she cannot cancel that insurance plan because a divorce has been initiated. The ATROS also restrain parties from selling assets before they are divided by the court. Thus, a party may not unilaterally sell a home during divorce without a court order as discussed above.


At Trial: At the end of the case, the court is not as restricted in its ability to order the sale of the home. If the parties only significant asset is the family home and an award of that asset cannot be offset by another, the only way to divide the community estate is to sell the home. Therefore, during a Del Mar divorce, it is well within the court's authority to order the sale of a residence and to divide the proceeds equally between the parties.

Please contact us if you are thinking of meeting with a divorce lawyer. Whether you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation, consulting with a knowledgeable attorney is of paramount importance. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Divorce - Kristen Stewart's Affair with Rupert Sanders Destroys his Marriage

March 6, 2013

In July 2012, Us Weekly released photos of Twilight star, Kristen Stewart, and Snow White and the Huntsman director, Rupert Sanders', cheating scandal. Stewart and Sanders were photographed kissing in a parked car on the side of a secluded road. At the time, Stewart was involved in a serious relationship with teen heartthrob Robert Pattinson, and Sanders was married to British model Liberty Ross. Although Stewart and Pattinson reconciled in September, Ross has recently filed for divorce from her husband of nine years.

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Ross and Sanders reportedly gave their marriage another shot after news of the cheating scandal broke and even attended marriage counseling. However, Ross was unable to move past her husband's public infidelity. The former couple has two children, Skyla, age 7, and Tennyson, age 5. In her Petition for Dissolution of Marriage, Ross requested joint custody of the children in addition to spousal support and attorney fees. Sanders filed a Response to the Petition also requesting joint custody but not spousal support. Sanders wants each party to bear the cost of his or her own attorney fees.

Learn more about the divorce process in Del Mar

Ross retained celebrity divorce attorney, Laura Wasser, to represent her in her divorce. Wasser is most famous for her representation of celebrities such as Heidi Klum, Ryan Reynolds, Kim Kardashian, and Britney Spears. According to Los Angeles Times, Wasser's services will cost Ross $750 per hour. With rates that high, it's no surprise that she is asking the court to order Sanders to cover Wasser's fees. As Del Mar divorce attorneys are well aware, California courts have the authority to order one spouse to contribute toward the attorney fees and costs incurred by the other spouse. However, since California is a "no-fault" state, Sanders' infidelity will be irrelevant to all of the court's rulings.

Family Code §3557 was enacted to ensure that both spouses have access to legal representation to preserve their rights. This code section applies to limited circumstances including actions in which a supported spouse requests enforcement of an existing order for spousal support. In determining whether an award of attorney fees and costs is appropriate under Family Code §3557, the court must consider the following two factors:

(1) whether there is a disparity in access to funds to retain counsel, and;

(2) whether one party is able to pay for legal representation for both parties.

Thus, if one party has significantly more resources than the other and is able to pay for both parties' legal representation, a court may order him or her to do so in limited cases. Because Ross is not seeking enforcement of an existing support order, she will likely not be award attorney fees under Family Code §3557.

Read on about Del Mar divorce procedure here.

A request for attorney fees may be made during the pendency of a divorce pursuant to Family Code §2030. Family Code §2030 has similar requirements as §3557; however, allows for a request to be made for purposes other than to enforce existing orders. Thus, Ross is likely requesting an award for attorney fees pursuant to this code section.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.